Canadian Lawyer InHouse

MAY 2016 22 INHOUSE and four months left to serve. Potts, who refrained from speaking to the media throughout the legal proceed- ings, spoke briefl y outside the courtroom in Oshawa after the sentencing in February. With his wife, parents, and two of his four children by his side, he said he accepted the outcome. "I really do feel that justice was served. I commend both counsel for their excellent work," Potts said. In his sentencing decision, Sosna high- lighted the fact that Potts, as the solicitor for the City of Oshawa, was clearly targeted by Lutczyk for his role as the lawyer for the city. Lutczyk blamed Potts for a decision the city made to garnish his council salary be- Before joining the City of Oshawa in 2001, Potts practised with his dad Jim and brother-in-law Stephen Kylie in Peterbor- ough, Ont., from 1992 to 1999. It was a fam- ily business. But Potts found himself drawn to public service and has been part of the small legal department in the growing com- munity just east of Toronto. When Potts fi nally arrived home that night at 10:50 p.m., he realized an unknown sport utility vehicle was parked outside his house. As he exited his own car, he noticed the person approaching him was former Os- hawa city councillor Robert Lutczyk. Potts, surprised but not immediately worried to see the councillor in his driveway, recog- nized Lutczyk and was about to extend his hand to the man. Maureen and the couple's two daughters aged 14 and 16, who were home at the time, would soon hear Potts' car alarm go off. Lutczyk had approached Potts, indicated he had a gun, and swiftly stuck it in Potts' ribs, shoving him into his waiting SUV, saying he would be shot if he didn't get into the truck. Potts says he had never had any kind of confrontational encounters with Lutczyk during the time the troubled man was on several terms of council. "Personally, I nev- er had any dealings with him outside of city hall, and my dealings with him within city hall were no different than with any other member of council," says Potts. "If he and I were ever passing in the hall, it might be simply 'Hi, Dave.' 'Hi, Robert.'" What happened that night was complete- ly unfathomable to David Potts. THREE-YEAR ORDEAL On Feb. 26 of this year, Lutczyk was sen- tenced to eight years and four months in prison for Potts' 2012 violent kidnapping. Lutczyk, who had been in custody since the incident, was sentenced at the Durham Re- gion Courthouse before Justice Alexander Sosna. With credit for time already spent in jail since his arrest, Lutczyk has three years tween 2008 and 2010 regarding a $190,000 judgment against him by a construction cli- ent, and for a 2003 dispute between the city and his father related to a zoning bylaw. The city was on the receiving end of garnishment proceedings initiated by Lut- czyk's creditors. Potts' role was to give the legal opinion. Also as the city solicitor, it was ultimately Potts' responsibility to make the determination whether there was enough evidence to proceed with a prosecu- tion under the city's zoning bylaw. He de- cided there was and the prosecution led to a conviction following a trial with a $1,000 fi ne that was imposed. Lutczyk pursued ap- peals all the way to the Supreme Court of Canada and lost. Lutczyk was broke, without work, and his marriage was falling apart. He decided to direct his blame at Potts. "David Potts, as the lawyer for the City of Oshawa, was performing his duties in accordance with his calling," Sosna said in court. "Individu- als performing their duties in the judicial system should have no fear of retribution for violence or threats from members of the public who perceive they have been wronged. The strength and integrity of this system of justice cannot be eroded or less- ened by such actions. Lutczyk, in kidnap- ping David Potts, did exactly that." Sosna said Lutczyk's statements to po- lice during the 26-hour standoff after Potts managed to escape "speak volumes" for his views as they related to Potts and his role in the justice system. Statements such as: "He messed with me so many times . . . he cost me money and he did it out of malice; for no good reason." When asked about the fact he was targeted by Lutczyk because of ac- tions he took as the lawyer for the city, Potts simply deferred to Sosna's comments: "That was a concern, and I think Justice Sosna's comments were appropriate," he said. 'MOST TERRIFYING NIGHTMARE' The case has been a long and tumultu- ous one for the Potts family as they endured countless court delays, including pre-trial motions that dragged on for six months as Lutczyk argued his charges ought to be dis- missed because of his treatment in jail. In the victim impact statement Maureen gave to the court in early February, she said on the night her husband was kidnapped, she feared she might never see him again. At a sentencing hearing Potts attended with 15 Personally, I never had any dealings with him outside of city hall and my dealings with him within city hall were no different than with any other member of council. DAVID POTTS, City of Oshawa MARK BLINCH

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